On January 31, 2020, the Second District Court of Appeal in HSBC Bank USA, N.A. v. Sherman, held “that as a dismissal without prejudice does not constitute an adjudication on the merits, in which Plaintiff did not need to send an additional notice of default letter before refiling.”

In reaching this decision, the Second District Court of Appeal cited to PNC Bank, N.A. v. Otero, 277 So. 3d 199 (Fla. 3d DCA 2019), where the the Court held that a dismissal without prejudice “does not constitute an adjudication on the merits” and that “following an involuntary dismissal without prejudice ‘there [is] no practical purpose in requiring an additional notice [of default].' ” Id. at 200-01 (alterations in original) (quoting Sill v. JPMorgan Chase Bank, Nat'l Ass'n, 182 So. 3d 851, 852-53 (Fla. 4th DCA 2016)). Because the instant complaint alleged the same breach as the previous complaint, HSBC was not required to send a new notice under paragraph 22 of the mortgage. See id. at 201 (“[As the first complaint was] dismissed without prejudice, . . . [the original] notice of default remained valid and a second notice of default was not required before filing the second complaint based on the same default.” (alterations in original) (quoting Sill, 182 So. 3d at 852-53)). This case is not yet final and is subject to rehearing. 

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Contact Marissa Yaker, Esq. here.

On January 9, 2020,  the Fifth District Court of Appeal in Nationstar Mortgage, LLC v.  McDaniel, Case No. 5D19-1070, 45 Fla. L. Weekly D96a, January 9, 2020, held that “Florida Rule of Civil Procedure 1.130(a) only requires that the documents (or copies thereof) on which the action is brought be attached to the complaint,  here those would be the mortgage and note.  Appellant is not suing on the servicing agreement or power of attorney, thus, those documents need not be attached to the Complaint.”  Please note that said documents may need to be introduced during the course of litigation, if the case becomes contested. This case is not yet final.
 
Questions?
Contact Marissa Yaker, Esq. here.

On December 6, 2019, the Fifth District Court of Appeal of Florida in U.S. Bank Trust, N.A. v. Leigh, 44 Fla. L. Weekly D2914a, Case No. 5D17-2967 (December 6, 2019), held that a “default/demand letter can include amounts that are more than five years past due when the letter is sent.”  This holding was basing on the evolving case law, including citing to Grant v. Citizens Bank, National Ass'n, 263 So. 3d 156, 158 (Fla. 5th DCA 2018),  which “clearly states that a lender can recover for unpaid installments more than five years past due.”  Accordingly, the Fifth District Court of Appeal was compelled to reverse and remand and direct the trial court to enter judgment in favor of U.S. Bank.  ​

​Questions?
Contact Marissa Yaker, Esq. here.

On December 10, 2019, the Supreme Court of the United States in Rotkiske v. Klemm, SC No. 18-328 (12/10/19), held that “section 1692k(d) statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.” 15 U.S.C. 1692k(d) states, “an FDCPA action must be brought within one year from the date on which the violation occurs.”
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Questions?
Contact Marissa Yaker, Esq. here.